border unions

   try this in san diego some time 





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"The world of the border 
turns labor law on its head-old,
established legal rights 
are just so much ink on paper, 
and
even the decision of federal judges to enforce the law are
simply ignored. NAFTA's labor and environmental "side-
agreements" have provided no help to either labor or the
environment.

I. Industria Fronteriza

Tijuana's oldest maquiladora closed last year.

It didn't fall victim to the dreaded Chinese competition,
confounding a wave of near-hysterical alarms in south-of-
the-border newspapers, warning that the days of all Mexico's
factories were numbered. Instead, Industria Fronteriza owed
its demise to a more prosaic cause: women stopped wearing
nylons.

For almost four decades, seamstresses in this sprawling
sweatshop churned out what was once the height of haut
couture. Starting in the mid-1960s, the sleek hosiery
caressing the slim legs stalking down New York's fashion
runways passed through the rough working hands of hundreds of
Mexican women bent over machines on a sweaty, deafening
factory floor within a stone's throw of the U.S.-Mexico
border.

Given changing styles, perhaps the company's end could have
been easily predicted. Plans might have been made for easing
these veterans of needle and thread into jobs in some other
border sweatshop. Or they might have been trained to fill one
of the high-value-added positions that policy wonks insist
should, and will, replace the old labor-intensive jobs that
started the industrial gold rush here 40 years ago.

Traditional Mexican labor law would have helped the
dislocation of these seamstresses. Since the 1930s, when
radicals wrote the country's labor legislation (and made it a
model throughout Latin America), the Federal Labor Law has
called for something U.S. workers would love to have:
severance pay. A week's pay for every year at the machine
seemed only just to the reformers of that more egalitarian
age.

For today's seamstresses, a little money to pay for training
programs, some severance pay to live on and a government
interested in finding new jobs for older workers might have
made quite a difference.

Not in the world of the border. This world turns labor law on
its head - old post-revolutionary legal rights are just so
much ink on paper, and even the decisions of federal judges
to enforce the law are simply ignored.

What actually happened at Industria Fronteriza, however, is
strange even by Tijuana standards. First, workers got no
notice that the company was planning to close. In itself,
that's not unusual in a city and an industry where shops are
suddenly emptied of their machines in the dead of night,
leaving people to show up for work at the doors of a vacant
shell the following morning. Second, Industria Fronteriza
employees belonged to a pro-company charro union, whose
casual lack of concern for their welfare was the source of
many prior industrial battles. That's not unusual either.

What distinguishes the Industria Fronteriza experience,
however, is that in the spring of 2003, the company conspired
with the charro union and staged a strike against itself. The
sole purpose of the phantom strike was to provide a legal
obstacle to the implementation of the severance pay
requirement, and leave the workers with nothing. Mexican law
says that in the event of a strike, the claims of the
striking union must be satisfied before a company can close.
Since the official closure of Industria Fronteriza was a
precondition to distributing severance pay, the declared
strike stopped the compensation process in its tracks. That
was pretty extreme, even considering the long-established
practice along the border of allowing factory owners to get
away with virtually anything.

Throughout Mexico, factory owners sign "protection contracts"
with pro-government and pro-company unions, called sindicatos
charros. The phrase originally referred to unions led by Luis
Morones, a Mexican labor leader from the 1920s. Morones was
famous for dressing up like a cowboy, or charro. A notorious
conservative in the Mexican labor movement, he signed
sweetheart agreements with employers; consequently, workers
"celebrate" his memory by referring to company unions as
"charro unions." Protection contracts and charro unions are
the primary system of labor control for foreign corporations
that have built factories on the border. This system allows
them to pay extremely low wages, even by Mexican standards,
and to maintain dangerous and even illegal working
conditions, with little fear of organized worker resistance.

Jesús Campos Linas, the dean of Mexican labor lawyers, says
that thousands of such contracts in Mexico are arrangements
of mutual convenience among corrupt unions, the government
and foreign investors who own the factories. "Companies," he
explains, "make hefty regular payments to union leaders under
these contracts and in return get labor peace."

Over the two years following the closing of Industria
Fronteriza, a lawsuit by the workers ground through the
courts. Finally, four workers, who had been illegally fired
in June 2002, won a decision forcing the Tijuana Labor Board
to tell the company to collectively pay the workers $50,000
in severance. Of course, the company didn't pay, so the
workers had to get another order, this one requiring that the
board confiscate the sewing machines, industrial steam irons
and the other equipment left in the abandoned factory.

On December 7, 2004, the workers stood ready at the gate,
having come with a truck, forklifts, a lawyer from Mexico
City and supporters to carry the equipment out. They had even
reserved a storeroom in the maquiladora workers' barrio of
Maclovio Rojas to house the confiscated machines. But the
charro union stood at the door of the plant prepared for a
hostile confrontation with about 40 people, including former
company supervisors, holding big sticks ready to start a
fight with the workers.

They needn't have bothered. When a Labor Board official
noticed a strike flag in the door of the factory, he refused
to perform the confiscation because a "strike" was in
progress. Workers pointed out that the charro union itself
had ended its phantom strike, but the labor board just needed
a pretext. In a shouting match back at its downtown offices,
Labor Board president Raúl Zenil y Orona refused to discuss
any further action against the company, and he announced to
the workers that the confiscation would never happen.

In some ways, the workers were lucky they didn't end up in
jail. Baja California is the free-trade state, where the
advanced guard of Mexican industry and commerce live by a set
of rules that the rest of the country is only beginning to
adopt. In Baja, challenging the cabal of managers, government
officials and compliant unions that set these rules provokes
a grim and dangerous hostility. The state's prisons have been
home to many activists from the social movements of "los de
abajo," the people from below.

During the two strikes of Han Young workers in 1998 and 1999,
the first legal strike by an independent union in the
maquiladoras, strike leaders Enrique Hernández and José
Peñaflor spent months slipping through the shadows from
office to hidden office, seeking to avoid arrest. Julio
Sandoval, a leader of indigenous migrant farm workers, spent
three years in an Ensenada prison for leading land invasions
to secure farm workers a place to live. Hortensia Hernández
has been held in Tijuana's prison almost as long for fighting
for land and housing for the city's maquiladora workers in
the Maclovio Rojas barrio.

Laboring in the border's vital factory heart, Margarita
Avalos describes the grinding economic pressure driving these
social movements. Avalos worked at Industria Fronteriza for
two and a half years, and remembers her time ironing the
sleek garments sewn by her friends: "In the factory, the
administration was really authoritarian. They screamed
orders. They threw on the floor the things we needed to use.
They forced us to work extra time, and if we couldn't do it,
they said they wouldn't pay us for any of the time we worked
at all. Sometimes I had to work 24 hours straight, even going
without eating, in order to get out the orders they demanded.
The chemicals and the heat were hard on my body, and for
those of us who were pregnant, it was even worse."

For that, Avalos was paid $65 a week. If she really churned
out the nylons and bras the way the managers wanted, she
could make another $30, but that meant ironing a lot more
than the standard 2,000 pieces in an eight-hour shift, or one
every 15 seconds.

Raúl Ramírez, Baja California's Human Rights prosecutor,
faults the government's desire to protect investment above
all else. "The authorities don't care about the poverty of
these communities, or their social problems like lack of
housing or drug addiction. But they are very concerned with
the question of the land titles of the large landholders.
They want to take care of their investments. So the
government uses the law, the police, even the army. They say
this provides safety and stability for investors. And they
abandon the poor."

The social cost of this policy, Ramírez says, can be found in
Baja California fields on any given day during the harvest
season, when workers pick tomatoes and strawberries for U.S.
supermarkets. Whole families work together in these
agricultural maquiladoras - children alongside adults. Félix,
a 12-year-old boy picking cilantro in Maneadero in June 2003,
said his parents were making about 70 pesos a day (a little
over $6), while he was bringing home half that. "We can't
live if we all don't work," he said, in the tone of someone
explaining the obvious.

At wages a tenth of those paid for the same job in Los
Angeles, it might seem fair if maquila workers only had to
pay a tenth of L.A. prices for food, rent or any of the basic
necessities of life. But that's not the world of the border
either. Two years ago a group of New England nuns, who
organized the Center for Reflection, Education and Action
(CREA), did an exhaustive survey of border prices. They found
that for a kilo of rice, a Tijuana maquiladora worker had to
labor for an hour and a half. Even an undocumented worker
bussing dishes in Beverly Hills at minimum wage can take the
same rice home with only 10 minutes' pay.

As usual, what appears to be a legal problem - in this case
the enforcement of labor laws - is really about money. It's a
recipe for confrontation, and all along the border economic
pressure is fueling a wave of industrial unrest.

The National Labor Policy of Mexican President Vicente Fox
caters to investors, not minimum-wage maquila workers. In
2001, the World Bank recommended rewriting Mexico's
Constitution and Federal Labor Law, eliminating protections
for workers in place since the 1920s [See "Escalating
Struggles over Mexico's Labor Law," p. 16]. The new law would
drop mandatory severance pay and stipulations that require
companies to negotiate over factory closures. No longer would
employers have to grant permanent worker status after 90
days, limit part-time work or abide by the 40-hour week. And
the law would also eliminate the historical ban on
strikebreaking. Mexico's guarantees of employer-paid job
training, health care and housing, would be scrapped as well.
Essentially, these recommended changes would institutionalize
in the rest of Mexico the kind of labor relations that
already exist, on the ground, in the maquiladoras.

Fox embraced the Bank's report, calling it "very much in line
with what we have contemplated." The recommendations were so
extreme that even the head of a leading employers'
association, Claudio X. Gonzalez, called them "over the top,"
noting the Bank didn't dare to make such proposals in
developed countries. "Why are they then being recommended for
the emerging countries?" he asked.

In Mexico City, Jesús Campos Linas, the labor lawyers' dean,
was appointed to head the local labor board by left-wing
Mayor Andrés Manuel López Obrador. Campos Linas rejects Fox's
argument that gutting worker protections will make the
economy more competitive, attract greater investment and
create more jobs. "Mexico already has one of the lowest wage
levels in the world," he charges, "yet there's still this cry
for more flexibility. The minimum wage in Mexico City is
[less than $4] a day - no one can live on this. And [in 2002]
we lost 400,000 jobs. Changing the labor law will not solve
this problem."

Tiburcio Pérez Castro, professor of education at the National
Pedagogical University, accuses the Baja California
government of only enforcing those provisions of the law that
protect private property. "There's a law guaranteeing people
the right to health care, but no one has any," he notes
bitterly. "There's a law which protects the right to food,
but thousands of people go hungry every day."

So in the end, according to Pérez Castro, the rule of law
itself is in question in Baja California, "at least insofar
as it protects people, especially the poor, in the
enforcement of their rights. They pass laws to protect the
maquiladoras, so the rule of law exists in that sense," he
admits. "But there is a danger to social stability, because
it's so one-sided."

Whose priorities will prevail in Mexico, those of workers or
those of free-trade investors? "The changes proposed by the
Bank would be a gigantic step backwards for workers," Campos
Linas emphasized. "The bankers don't understand that it took
a revolution - a million people died - to get our
constitution and labor law. Our problem isn't that we need a
new law; it's to enforce the one we have."

In Baja California, the free-trade state, that's not so easy.

II. Customtrim/Autotrim

In early September 2002, the coalition for Justice in the
Maquiladoras (CJM), a group that brings together unions,
churches and community groups in the three NAFTA countries,
put out a call to border activists, urging them to act
quickly to salvage one of the few remaining complaints filed
under the North American Agreement on Labor Cooperation
(NAALC): the case of mistreated workers at the Customtrim and
Autotrim plants.

What followed that call, and the ultimate fate of the
Customtrim/Autotrim complaint, is not only a stark
illustration of the failure of the NAALC, but also a grim
warning. As the Bush Administration pushes hard for the
Central American Free Trade Agreement (CAFTA) and the Free
Trade Area of the Americas (FTAA), free trade's defenders
argue that the rights of workers in Central and South America
under these agreements can be protected in much the same way
that the NAALC protected the rights of workers in Mexico. The
bitter experience of the workers at Customtrim/Autotrim and
their supporters, however, indicates that exactly the
opposite is true. Labor protections embodied in the NAALC not
only failed in this one case, but in every other effort made
by workers to use the same mechanism to protect their health,
their safety and their rights at work. Basing protection for
workers in future agreements on this experience condemns them
to the same fate.

The labor cooperation agreement is usually referred to as the
labor side-agreement to the North American Free Trade
Agreement (NAFTA). It set up a process that free-trade
supporters argued would protect the health, safety and labor
rights of workers in the three NAFTA countries - the United
States, Mexico and Canada. Under the side- agreement,
workers, unions and community organizations could file
complaints if worker protection or health and safety laws
were not being enforced. NAFTA also had a second side-
agreement, the North American Agreement on Environmental
Cooperation. Its process, similar to that of the labor side-
agreement, supposedly allowed communities to file complaints
over cases of environmental contamination.

Both agreements were crucial to residents of the U.S.- Mexico
border, since violations of labor rights, dangers to worker
health and safety, and extreme cases of environmental
contamination have been commonplace in this region since long
before the agreements were proposed. These problems are a
result of a longstanding development policy in which both the
Mexican and U.S. governments encouraged corporations to
relocate production to border factories, or maquiladoras, by
creating a border zone within which labor protection, health
and safety, and environmental laws were essentially not
enforced. By 2001, more than 2,000 such factories were
employing more than 1.3 million people, and border cities
like Tijuana and Juárez had mushroomed into industrial urban
centers with over a million residents each.

The CJM's urgent call of September 2002 was motivated by its
learning of a secret discussion between U.S. and Mexican
government officials, held in the San Diego Convention
Center, supposedly to find ways of protecting the safety and
health of maquiladora workers. From the perspective of the
activist group, the secret meeting highlighted just how empty
the promises of the side- agreements have been. The first
problem was that the workers themselves, the very victims of
the conditions that the side-agreements were intended to
remedy, were excluded from the process.

Workers at the Customtrim and Autotrim plants, owned by the
U.S. auto-parts giant Breed Technologies, had filed a
complaint that they had been systematically exposed to toxic
chemicals at work in violation of Mexican health and safety
laws. The sickest ones were referred to by management as
"junked workers" and were forced to labor in a special area.
When workers began organizing an independent union to
protest, the most active participants were fired, a violation
of Mexican labor law. Complaints to the authorities went
nowhere, and workers filed a case under the labor side-
agreement, assisted by the CJM along with U.S. health and
safety activists.

The body responsible for resolving the workers' complaint -
the Binational Working Group on Occupational Safety and
Health - organized the San Diego meeting, but the discussion
inside the convention center was really about dumping the
workers' case, not resolving it. A year before, a report
issued by the National Administrative Office of the U.S.
Department of Labor concluded that extensive violations of
Mexican health and safety laws had taken place in the two
Breed Technologies plants in Matamoros and Valle Hermosa.

Workers testified at the hearing that prompted the report,
risking their jobs and ensuring that they would be
blacklisted for years. Independent health and safety experts
from both countries had also submitted massive documentation.
Workers and their supporters thought there was yet a chance
that, for the first time, monetary penalties might be imposed
on Mexico for not enforcing its own laws, since the side-
agreement allows for heavy fines in cases of health and
safety violations.

In the end, however, the secret and exclusive San Diego
meeting proved to be the only actual outcome of the NAFTA
process. The meeting was "a charade and a disgrace," fumed
CJM director Martha Ojeda. "Instead of specific, effective
action to improve conditions at Autotrim/Customtrim, and
throughout the maquiladora industry along the border, the
injured workers are promised 'chats' between government
officials whose refusal to listen and to act was the exact
basis of the complaint in the first place," she railed.

By 2002, the number of new complaints filed under the labor
side-agreement had slowed to a trickle and finally to none at
all. Under President Clinton, appointees to the National
Administrative Office of the Department of Labor, which is
responsible for hearing evidence on complaints, often tried
to maintain at least the appearance of a commitment to
workers' rights. For some judges, like Irasema Garza, who
took testimony from Customtrim/Autotrim workers, that
commitment was more than just appearance. With the Bush
Administration, however, the United States has ceased to even
bother with pretense. Bush's unmistakable message was that
any effort to restrain trade and investment was politically
wrong- headed. And for his part, Mexican President Vicente
Fox did nothing to change the basic hostility to the appeal
process evidenced by his predecessors.

The problem with the side-agreement process, however, isn't
the attitude of the public officials responsible for
administering it, although they often make it clear that even
an appearance of fairness depends on the political will of
the administration in power. Whether liberals or
conservatives hold office, in Washington, Mexico City or
Ottawa, they are all committed to corporate-defined free
trade. Enforcing labor rights and environmental protections
runs contrary to the purpose for which NAFTA was negotiated -
creating conditions favorable to investment.

The Bush Administration is simply more open in its embrace of
this goal and sees nothing wrong with making money from low
wages and relaxed controls over pollution. This attitude will
also be the hallmark of the agreements designed to extend
NAFTA southward - CAFTA and the FTAA. Mindful of the
Customtrim/Autotrim case, those considering their positions
relative to CAFTA and the FTAA should heed the warning by
Connie Garcia of the San Diego-based Environmental Health
Coalition as she stood outside the closed San Diego meeting:
"NAFTA fails to protect workers or the environment. Its terms
should not be reproduced in new agreements."

The move to hold a secret hearing on the Customtrim/Autotrim
situation surprised no one, and most border activists saw it
for what it was - a last gasp of the NAFTA side-agreement
process sputtering to a halt.

III. Metales y Derivados

Metales y Derivados is an abandoned battery recycling plant
sitting on the lip of Otay Mesa adjoining Tijuana. Standing
outside the plant walls on the chemical- encrusted ground,
it's possible to look over the mesa's edge and see people
moving about in the working-class barrio of Chilpancingo
below. There, six years earlier, the Border Region Workers'
Support Committee (CAFOR) and the Citizens' Committee for the
Restoration of Cañon del Padre had documented the growing
number of children born with anencephaly; i.e., without
brains. Two of CAFOR's Mexican organizers, Eduardo Badillo
and Aurora Pelayo, along with their U.S. supporters were
stopped from making annual counts of the growing number of
cases after the issue began to appear in the press. But
enough data had been accumulated, they believed, to cite
Metales y Derivados as a likely source of the pollution
causing the horrific birth defect.

In 1998 the San Diego-based Environmental Health Coalition
(EHC) and the Citizens' Committee in Tijuana filed a case
under the environmental side-agreement. They alleged that
Mexican authorities hadn't enforced environmental laws
against the plant's owners, the New Frontier Trading
Corporation, based in San Diego. Staff working for the North
American Commission for Environmental Cooperation (NACEC)
investigated the complaint and reported their findings in
February 2002.

Their study documented the illegal storage of 7,000 tons of
toxic waste and the presence of lead, arsenic and heavy
metals in the soil surrounding the defunct plant. It also
mentioned an inconclusive survey of lead contamination among
Chilpancingo residents conducted by a team from the
University of California at Irvine. Cesar Luna, the lawyer
who headed the EHC's border project at the time the case was
filed, documented one case of anencephaly himself and heard
reports from residents of at least half a dozen others.

But NACEC staff had no power to investigate the actual health
conditions in Chilpancingo, and no official record of
contamination existed because Mexican authorities never
conducted a health survey in the barrio. They had good reason
not to do so. Reports of anencephaly had been increasingly
frequent in industrial communities all along the border, but
the lax enforcement of environmental laws is an important,
albeit unspoken, means for attracting new factories. A
scandal about children without brains might discourage any
future flow of investment.

So just as in the labor case, that was it. "All we got was a
report, and an incomplete one at that," grumbled EHC policy
advocate Connie Garcia. "Nothing changed on the ground. NAFTA
provides for no cleanup plan or enforcement mechanism, and
the community continues to be poisoned," she charged."

[David Bacon is a freelance writer and photographer; he
writes regularly on labor and immigration issues. His latest
book is The Children of NAFTA: Labor Wars on the US/Mexico
Border (University of California Press, 2004).]


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